On November 29, a San Francisco federal judge untangled a really messy “school speech” case and ruled that students who posted or praised racist Instagram comments were not protected by the First Amendment.

Judge James Donato decided that although the online posts, including “likes,” were “speech” under the First Amendment, the out-of-school posts were subject to restriction by the school, disrupted the school environment and properly were punished by school officials.

What happened

A student at Albany High School (pseudonymously named “C.E.” in the court proceedings) opened a private Instagram account in November 2016. He invited several friends to follow the account. He proceeded to post 30 to 40 times over several months. The really ugly posts mainly targeted African American fellow students. For example, one depicted a student and the school’s black basketball coach with nooses around their necks. Another showed a “Ku Klux starter pack” with a noose, a black doll and a white hood. Others, with pictures of the targeted students taken at the school, ridiculed their “nappy” hair, and compared African American students and women to gorillas.

Several of the account followers posted comments cheering on the sentiments in the racist posts, and several others simply “liked” them.

When one of the followers showed some of the posts to two of the targeted students, and the posts were revealed, “a cascade of disruptive events immediately followed the public disclosure” of the posts, as Judge Donato put it. Word quickly spread, and many students were distraught and seriously upset. The school officials called in mental health counselors to calm the students, and district officials called the police. A “restorative justice “ event was held at the school.

And the Albany United School District permanently expelled the posters and suspended all the followers.

They brought suit in federal court, contending that the expulsion and suspensions violated their right to free speech.

The issues

This was not a simple case. It involved technology that is relatively new to the courts, and Judge Donato had to wade through the thicket of conflicting Supreme Court decisions on student speech. The court ruled in 1969 (Tinker v. Des Moines Sch. Dist.) that students were entitled to wear black armbands to school as a Vietnam war protest, reasoning that students don’t have to check their First Amendment rights at the schoolhouse door. But since Tinker, the court has ruled that high school students could not hoist a “Bong Hits 4 Jesus” banner at a school-sanctioned event because the principal thought it promoted illegal drug use, the court agreed that “lewd” and “offensive” political speech could be punished and it allowed censorship of student newspapers. The court’s rationales in the school cases have been inconsistent. The only thing the court has been consistent about is that school students do not enjoy the full measure of First Amendment rights.

The Albany posts were clearly “speech” within the meaning of the First Amendment. Less clearly, so were the “likes,” as they signaled the user’s “agreement, approval, or enjoyment” of the posts. Had all the communications been among adults, they would have enjoyed First Amendment protection. There is no First Amendment exception for racist or hate speech. So the big question was whether the posts lost First Amendment protection because they were made by students.

“School speech”

Were they “school speech?” If they were, they are not as protected as if they were made by grownups. All of the posts were made out of school, not during school hours, on a private Instagram account. But as Judge Donato found, the followers of the account were Albany students and the posts featured 10 different students as well as school personnel. The pictures of the nooses around the necks of the student and basketball coach depicted school activities and were taken on campus. Other posts were about school events. These were posts by, for and about students and school affairs. It’s a close question, but Judge Donato held the posts were “school speech.”

Unprotected by the First Amendment

Diminished First Amendment protection doesn’t mean no protection. Under the Tinker precedent, student speech can’t be punished unless it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” In Albany the disruptive events were largely caused by student reaction to the posts’ disclosure. The reaction was foreseeable. Donato said the posts “related to ongoing social tensions at school … and increased the likelihood their speech would reach and disturb the campus.” It is “common knowledge that little, if anything, posted online ever stays secret for very long.” The judge concluded that the posts, comments, and likes were not protected by the First Amendment.

A step too far?

Having decided that the speech caused disruption within the meaning of Tinker, Judge Donato also decided that the posts violated “the rights of others,” an alternative reason Tinker said student speech could be suppressed. Judge Donato acknowledged that it was unnecessary to resolve this issue. But he nonetheless went on to rule the posts deprived students generally of the “right to enjoy an education in a civil, secure and safe school environment.” Previous cases have dealt with harassment and bullying, and of course libeling or invading the privacy of fellow students could be condemned. The posts may have violated the rights of the individual students pictured or targeted in the posts. But to say that speech violates the rights of the amorphous general student body to a “civil, secure and safe” environment gives school administrators too much power to suppress speech that may be intemperate or merely make people uncomfortable. The Tinker “rights of others” standard should be limited to well-settled and specific rights of individuals, not opened up to vague, aspirational notions of how an ideal school would look. Tinker itself cautioned that:

“Undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression… Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person, may start an argument or cause a disturbance. But our Constitution says we must take this risk… and our history says that it is this sort of hazardous freedom — this kind of openness — that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.”

More to come…

The internet, and social media in particular, are the frontier in student speech cases. Earlier decisions focused on whether the speech occurred on or off campus. As Judge Donato remarked, this geography is “still a relevant factor.” But the “internet world, where today’s students are particularly comfortable residents,” requires rethinking the extent to which school authorities can monitor, police, and punish students’ online speech. Expect more litigation.